93 F. 809 -

93 F1d 809

It having been customary, in putting on the collars of eoatB, to sew the underside to the coat, and then sew the upper side down over the seam, there was no invention In making the outside of the collar a "seam" larger than the Inside, and seam both to the coat at the same time, and then turn the wide part under and seam it. This Is simply a change In the form and arrangement of the constituent parts, and not patentable.

2. SAME.

In cutting coats, there can be no Invention in laying on the patterns In a particular way, for the purpose of economizing material. This Is merely a matter of judgment, producing good workmanship, and not a matter of invention. The Corser patent, No. 364,219, for improvements In coats and the methods of making them, held valid and infringed as to claim 3, and void as to the remaining claims for want of invention.

8. SAME.

'" SAME-AI'PORTIONMENT OF COSTS.

Where three patent cases were heard upon the same testimony, aud In one case the decree was for plaintiff, in another for defendant, and In the third for plaintiff on one claim, and for defendant on the three others, held, that in each case costs would be allowed to the recovering party for all but'the evidence, and the costs for the evidence would be disallowed in all of the cases.

This was a suit in equity by Brackett G. Corser against the Brattle· bol'O Overall Company for alleged infringement of a patent for improvements in coats and the methods of making them. James L. Martin, for plaintiff. Kittredge Haskins and William E. Simonds, for defendant. WHEELER, District This suit is brought upon patent No. 364,219, dated June 7, 1887, and granted to the plaintiff for an alleged improvement in coats and method of making them. .The improvement in coats relates to the putting on of the collars, and is thus described in the specification:
. "It has been customary to sew the underside to the coat, and then sew the upper side down over this seam, which latter is a diflicult operation, and usually' leaves the collar awry or twlstl'd and deformed by plaits. I make the outside. of the collar a 'seam' larger than the Inside, and seam both to the coat at the same time. after .whlch the wide part Is turned under and seamed,"

There are four claims for this alleged improvement,-two for a coat provided with a collar composed of these parts, and connected to the coat in this way; and two for "the improvement in the art of attaching collars to coats, which consists in providing" these parts and sewing them to the neck of the coat in this way. A part c1f the method of making is a sleeve pattern, with longitudinal lines where the seam un· del' the arm would come, or notches where the ends of the lines would be, either whole, or divided there with the lines along the edges of the parts, for conveniently varying that seam, and the sizes of the parts, and allowing economy in material, by placing the seum along lines at equal distances each WllY from the middle, and 50 Ireserving the

810

, , 93 FEDERAL REPORTER.

of the sleeve by adding as much to one part as should be taken from the other. '
"(3) The patternIn one or more parts for the entire sleeve, prOVided with longitudiupllines;or:l'!qu*a!.}ents, as described, for locating the under-arm seam, whereby ,.t is adapted for use in cutting sleeves of a given size, but which Ipay be made of parts relative widths, substantially as set forth." " ,'.. , . ". ' . .

The other forms of the method areieconomical ways of laying the various 'patterns on the ,cloth, the smaller among the larger, for cuttingout part:$ of the coats. ' '. ' " The improvement in the coat is like that iIi the shoe in question in Burtv. Evory, 133 U; S.; 349, 10 Sup. Ct. 394, where the court said:
"Their shoe performedUO new function. In the construction of It the vamp, the q'l1artersand the expansible gore flap were cut somewhat differently, it is true, from the like parts of the shoes constructed under' the earlier patents referred to, but they subserved the same purposes. It is well settled that not everyritnprovement tn an article isqpatentable:The test is that the improvement must be the of an original conception."

And, after citing upon cases, the court' further said that it was "simply a .change in form and arrangement of the constituent.parts of theshoe,:or an ittlprov;ement in degree only." ana' have long been universally worn and known, many ,andvaripl;1s styles oI' coUars and modes of sewing them on. 'Whether the prior structur.es·,are covered by .patents, or ever have been,ornot, makes no difference as to the character of the improv:errHmt upon them: The the coats this improvement1perform no new functitH1. 'fuming under an to sew down is no new thing. Neither 'is cutting 'the part'tobe turned 'under enough larger for that purpose any new·tpjng: It as jnJhe case of the shoe, fqrmand,.\ll'rangeme)J,to-f the constituent parts," and not patentable. Whether such an art as tbat of proqf oJ? together, under Ed) §§3, ,:::(1' jt is; .woJIl.d III Wa,t, of theprodJIYt, l,tll.q. lllucp. :wantwg III thIS process. The same conSIderation will applytothe,daims for laying for euttin,g Qo/l,ts., , cuttershavf beenJ:iying OD" econoplY cloth for mAAY y,ears,)f p,.ot time, 'iD;!,memoriaL :By,the first claim, thisiinproiVement."consists in cutting a.front.and front facingfl'om one side' of the web; the upper part. Of the sleeve from':the opposIte'side adjacent"the entire back from the body of'ithe.web,the, .unileJ! frwu.the side$ adjacent, ·and the pal1ts. of: t4e·collar,and .pocket .piece frQmclosely adjacent 'Or intermediate parts of·the web."., ay the secQ:nd,it consists in substantially, the, Slllne method, including the ,nae: .of the longitudinallymarked pattern forobtaintng: the, relative. width, of. the partil! oUae sleeve. If this. order of placing .the patter1l8 is ·not ,new, it is merely a if it is newj it ,Is merely a better way. It· is a matter of judgment, pl'oducing good workmanship, and. not a matter of: producing a distinctively new· method. , It is by, theprinciples 'Mtbe cases outside o.fpatentable iuvention. The inclusion of the use of anew style of pattern in the

of

TANNAGE PATENT CO. V. DOlS'ALLAN.

811

tuethod does not make the method itself patentable, although the pattern should be patentable. 'fhe lines upon the pattern are not shown to have been known and used before. The llotchesshown, although _ used for the same, purpose, aee iiot the same things. The lines are new things on the pat· tern for aecomplishing the same purpose with the pattern, and the pattern, with lines qpon it, was,a new manufacture. To contrive them and plac;ft them there for the purpose would seem to involve constroctive ingenuity,_ wNeh amounted to an original ,conception of this .de, . vice as. an addition to the former pattern. No adequate reason is made to appear why the third, claim is not valid for the pattern with these lines upon it. The use of such patterns by the defendant does not appear to be disputed. The notch foJ;' sleeve buttons on the pat· terns used is an addition not affecting the use of the lines. If it is an improvement, the patented invention has been taken to put the improvement upon, and, th.e, taking of it is none the less an infringement. Ho. the plaintiff appears to be entitled to a decree upon this claim only. This and two other cases between the same parties have been heard Ilponthesame testimony, in one ofwbich the plaintiff is to have a decree, and in the other the defendant. Obviously, the cost of the testimony is to be. somehow apportioned. Perhaps the most equitable and practicable way would be to allow costs iII each case to the reeovparty for all but the flvidence, and to disallow costs for that in all the .cases. Decree for plaintiff as to third claim only.

TANNAGE PATENT CO. v. DONAl.LAN.

(Circuit Court, D. Massachusetts. No. 716.
L

PA'l'ENTS-INVENTION-PRESUMPTJONS.

April 7, 1899.)

·

The fact that a certain process of dyeing animal fibers, skins, etc., which is elaimed to anticipate a patented process of chrome tanning, was publiely known for more than 30 years, during a time when in· ventor!< and scientists were vainly endeavoring to discover a successful method of chrome tanuing, raises a strong presumption that such dyeing process did not fully diselose a practical tanning method.SAME-ANALOGOUS USE-DYEING AND TANNING.

2.

The two arts of dyeing and tanning are radically distinct, so that It would require invention of a high order to discover that an old dyeing process would produce merchantable chrome-tanned leather.
SAMJ<;--ANTlCIPATION-AcCIDEN'rAL RESUI,TS.

3.

An aceidental result of a process, not contemplated and not recognized as important by the inventor, cannot anticipate a later patent. The Schultz Nos. and 291,785, for a process of tannJng by the green OXIde of chromIUm, known as "chrome tanning," were not antieipated eitller by the Heinzerling patent of 1881, for a process of chrome tanning, Which was never a commercial success, or by the FrancilIon l,'rench and Englisb patents of 1853, for a process of dyeIng animal ti bel'S, skins, etc.